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Rhode Island’s New Gun Control Measures May Not Survive Constitutional Challenges

Rhode Island’s New Gun Control Measures May Not Survive Constitutional Challenges

For now—especially in light of the Bruen decision—the arguments being offered for these laws are far from impressive.

It’s a shame to see any state falling into the trap of gun control, but it’s even more disappointing when that state is one of our original Thirteen Colonies—a colony that declared independence and went to war over the British government’s unilateral attempt to disarm our forefathers.

Rhode Island state senators managed to pass a magazine ban that was initially slated to die in committee.  The political maneuvering behind the bill’s passage stood in contrast with hundreds of gun rights supporters who filled the statehouse to publicly oppose it.

The disappointment doesn’t end there, as the Rhode Island Senate ultimately sent three new gun control bills to the governor: the ban on so-called “high-capacity” magazines, as well as broad restrictions on open carry, and a bill to raise the minimum age for purchasing guns and ammunition from 18 to 21.

All three bills are deeply immoral for disarming peaceable Americans and leaving them at the mercy of violent criminals, and functionally unconstitutional for violating our constitutionally protected natural right of self-defense.  No matter: Governor McKee signed them into law this past Tuesday.

But now, with the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, a court will likely subject these laws to an intense analysis of their foundation in the historical tradition of our Nation.

Rhode Island will have to affirmatively demonstrate that these three laws are firmly grounded in the original meaning of the Second Amendment, as ratified in 1791, and that these laws have historical antecedents that support their constitutionality.

That’s not an argument gun control advocates want to have, because the historical record is not on their side.

Instead of focusing on the actual basis of the Second Amendment, proponents of the bills offered several absurd arguments “justifying” these gun control laws.

Notably, Senator Cynthia Coyne demonstrated either appalling ignorance or sheer bad faith when she said in a prepared statement that “high-capacity magazines have no legitimate purpose for hunting or self-defense.”

Senator Coyne believes she has the power to dictate how many rounds you need in order to defend your life and the lives of your loved ones in the event of a surprise attack by armed aggressors.  But no politician has that power—period.

And Sen. Coyne is simply wrong to claim these magazines have no self-defense value.  Self-defense is exactly why millions of peaceable Americans own these magazines, which are legal in over 40 states.

Meanwhile, Senator Maryellen Goodwin argued for Rhode Island’s new age restrictions, claiming it is “well-settled science that teenage and post-teenage brains are still developing . . . [W]e shouldn’t be selling lethal weapons to people who we’ve decided are not old enough to buy cigarettes or beer.”

First, not everyone is in favor of those age limits on tobacco and beer, and everyone must acknowledge that they are widely flouted.  Age restrictions on guns will be, too.

But more to the point, though, is Senator Goodwyn willing to follow through on her own logic and raise the age for driving, marriage, military service, and voting to 21?  Those activities can be at least as consequential as the exercise of self-defense rights.

But of course, no one is proposing anything like that, because this isn’t about brain development.  This is about taking away guns.

Regarding the ban on the open carry of shotguns and rifles (Rhode Island already bans the open carry of handguns), Representative Leonela Felix laid her anti-gun cards on the table in stating, “No one should be walking around our communities with a loaded weapon.”

Instead of limiting herself to the specific provision of the bill—a ban on the open carry of loaded rifles and shotguns in public—Rep. Felix made it clear that she does not believe in the individual, natural right of self-defense as protected by the Second Amendment.  She does not believe that peaceable Americans have the right to carry the tools to defend their lives and their communities in public.

Unfortunately for Rep. Felix, this right—a natural right that precedes the Constitution—is exactly what the Supreme Court upheld in the Bruen decision.  The Court ruled that “nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.”

The Court made it clear, beyond question, that self-defense rights exist in public.  After the Bruen decision, Rhode Island can no longer expect federal judges to automatically uphold laws like their new carry ban based on vague “public safety” grounds.

Likewise, age limits and magazine bans do not square up with Bruen’s requirement that gun laws be “consistent with the Nation’s historical tradition of firearm regulation.”

The average age of soldiers in the Continental Army was between 18 and 20—an inconvenient historical fact for age restriction proponents.  Many of these soldiers brought their own guns to the fight.

And the precursors of today’s standard-capacity magazines were in use well before our nation’s Founding—more than a decade before adoption of the Bill of Rights, Joseph Belton demonstrated a 16-round repeating rifle to members of the Continental Congress.  These devices, and their modern counterparts, are constitutionally protected.

While Rhode Island’s new gun control measures have become law for the time being, it will be interesting to see whether they survive federal constitutional challenges.  One such case already has been filed, and there may be more.

For now—especially in light of the Bruen decision—the arguments being offered for these laws are far from impressive.

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Cody J. Wisniewski (@TheWizardofLawz) is the director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

 

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Comments

Colonel Travis | June 26, 2022 at 6:24 pm

From the RI state senator, about the magazine bill: “High-capacity magazines have no legitimate purpose for hunting or self-defense.”

Oh right. So that’s why you did not include current and retired law enforcement, active military and NG members. Hmmm. They can use magazines with more than 10 rounds for some weird reason. Gee, I wonder why that is.

Oh that’s right. I do know. Clearly this tyrant does not care how FUBAR things can go in a self-defense situation, how stressful it is, and how a committed attacker can survive a lot of bullet wounds. There are many documented cases of human beings surviving way more than 10 shots. The highest number I am aware of is 68. Ask Tim Gramins of the Skokie, Illinois PD how fun facing a gunman who did not go down until he was hit a 17th time from the officer’s .45.

Removing magazines from the citizens does not make them safer, nor does it remove them from the criminals.

    drednicolson in reply to Colonel Travis. | June 26, 2022 at 8:33 pm

    There’s several kinds of ultimately fatal bullet wounds that leave the target a “dead man walking” and a functional threat for several minutes up to even half an hour, able to continue to inflict harm until they succumb.

      Here’s one that’s recent (WARNING – graphic):
      https://files.catbox.moe/idx2uc.mp4

      This guy did not “put a thumb in it.” But he still managed to shoot the place up after being shot in the jugular (it appears).

      ConradCA in reply to drednicolson. | June 28, 2022 at 10:10 am

      You need high cap magazines when caught in a riot. The next time Dems need to mobilize blacks for an election or bring their blackshirts (ANTIFA & BLB) those who are caught in the riot are likely to need high capacity magazines to defend themselves.

    taurus the judge in reply to Colonel Travis. | June 27, 2022 at 8:34 am

    But Colonel, that’s a false dichotomy fallacy and we need to constantly remind our politicians of this.

    The 2A is NOT there for “hunting” or self defense” ( legitimate purpose or not- neither is specified in the Constitution or referenced in the amendment)- the 2A is there to protect ( security) of a FREE STATE ( notice, in context with the time the term “state”- that’s not referring to a geographic boundary of land- its the “state of freedom” of the individual)

    That’s for MILITARY ability against a hostile government or other entity- that’s the “legitimate” purpose. ( in spite of the fact that no “purpose” is required- legitimate or otherwise)

    The whole point is don’t form an argument on the false premise that these liberal politicians are somehow misunderstanding or misinformed- they are NOT.

    They are just trying to find the right combination of words to shut the people down so they can show their “superior intellect”- don’t give it to them.

      There IS, however, a right to be armed for self-defense, based in English common law and definitely a component of the basis for the Second Amendment.

      And, totally concur on those last two statements.

        taurus the judge in reply to GWB. | June 27, 2022 at 9:50 am

        True BUT, lets not convolute the issue

        The “right to self defense” is the “lesser included” right inherent to the 2a in terms of the USA.

        The concept of freedom ( security of a free state as written in the 2a) was that a “free man” will “fight to the death” to protect his “castle”- that was the motivation and reason for property ownership and even capitalism.

        Its the different in noun modification which was proper English back then between “a” state ( a descriptive attribute) such as “a” “state of being” versus “The state” ( which would be a body, state, province or other proper noun). We use this differentiation today even.

        The 2a was the assurance that free man would always have the TOOLS to effectively defend himself against those who would take away his “freedom” ( and lose his castle).

        Its clear in proper context and language of the time, the “self defense” aspect of the 2a was not against the highwayman, Indian, local scoundrel or any specific individual or any localized entity- it was against a rogue government (internal or external to the geography of the colonies) situation.

        “Hunting” wasn’t even a thought- it was GIVEN.

        We must address the left and the RINO with the cold hard facts.

      Colonel Travis in reply to taurus the judge. | June 27, 2022 at 2:24 pm

      There is no false dichotomy, no false premise. Did I limit the 2nd Amendment to self-defense? Where did I do this? I didn’t talk about all kinds of things in my comment, including the other bills signed by the RI governor.

      I addressed one point, and I didn’t even address that fully because you could write a book on it.

        taurus the judge in reply to Colonel Travis. | June 27, 2022 at 3:27 pm

        Probably could and should have been a bit clearer. I see where it was worded badly.

        No “you” didn’t but the response to the argument proffered by the left in general ( you don’t need a magazine with ….. capacity for hunting or self defense) is the false dichotomy.

    Colonel, can you give a reference on the person shot 68 times? That would have to be an interesting read, and ammunition for some arguments.

      Colonel Travis in reply to GWB. | June 27, 2022 at 2:37 pm

      Even better is the sheriff saying – that’s all the bullets we had.
      https://www.orlandosentinel.com/news/os-xpm-2006-10-01-deputy01-story.html

      Tim Gramins interview
      https://www.youtube.com/watch?v=a3QfyqtJLN4

      The book Gunshot Wounds: Practical Aspects of Firearms, Ballistics, and Forensic Techniques will disabuse anyone of the idea that a gunshot is guaranteed to put you down immediately.
      https://tinyurl.com/yy8mmnnz

      Tactical Anatomy – taught by a doctor, I don’t know if he’s doing courses any more. You can get his instructor book, which is most interesting.
      https://tacticalanatomy.com/

      Lots of documented cases of people getting shot repeatedly and still fighting. You don’t even have to be on drugs. Just determined to fight and not get hit in the brain or upper spinal cord. One can be shot directly in the heart and still have 10-15 seconds to kill someone.

      Aside from just being shot a lot, in a gunfight for your life, you are going to miss a lot, which is why forcing defenders to reload because of a smaller capacity magazine, when they don’t have, to is dangerous. There was a police officer who told one of my instructors that if you find yourself in a deadly force encounter, you will perform at about 75% of the level of your worst training day.

        Colonel Travis in reply to Colonel Travis. | June 27, 2022 at 2:44 pm

        The last paragraph should have started: Aside from (or in addition to) the times when a bad guy is shot a lot and does not go down….

        Even with higher capacity mags, the Va. Tech shooter used mostly 10-round mags and two handguns to kill 32. One of the guns was a .22. So even these “high-capacity” bans won’t do squat to stop the carnage of someone in a room full of unarmed people who are sitting ducks with no exit.

And I’ll bet if you look at Rhode Islands history in the 1900s that high schools had shooting ranges and shooting teams..

As did NY schools. Our district recently replaced the old pool with a new one, and the rebuild got rid of the shooting range under the pool.

    Dimsdale in reply to gospace. | June 26, 2022 at 7:57 pm

    Students were perfectly safe in high school rifle clubs when taught by sane adults.

    Sadly, the problems with alleged teen shooters correlates with the takeover of the schools by the left.

      GWB in reply to Dimsdale. | June 27, 2022 at 9:23 am

      It corresponds to the elimination of morals and actual punishment for infractions, and its replacement with therapeutic measures. But, yeah, brought by Progressives.

    oliver shank in reply to gospace. | June 27, 2022 at 7:59 am

    And the first constitution of NY required required the militia (men up to the age of 65?) to be armed. Except Quakers, who could pay a fee instead.

Louis K. Bonham | June 26, 2022 at 6:28 pm

Yup. States and the feds have been coasting for years on inertia and friendly judges willing to just rubber stamp whatever they want, using intermediate scrutiny as the shill, safe in the knowledge that SCOTUS was either reluctant to expand Heller or paralyzed on the issue.

That game is over. Now, the regulations are presumptively unconstitutional unless the government makes clear showing that their “flavor of the month” new restrictions are supported by history. Lotsa luck doing so, especially given all the arguments Justice Thomas has preemptively cut off.

Plus, give how lazy government attorneys have traditionally been in this area, are they going to be able to turn on a dime in response to a motion for a preliminary injunction (or an immediate summary judgment motion) and suddenly embrace historical analysis? Especially with DoJ, I rather doubt it.

The wailing and tears will flow loudly and furiously when these acts face scrutiny under the very clear standard of Bruen.

Didn’t a court already throw out red flag laws last year and recently age limits were also ruled unconstitutional?

    Colonel Travis in reply to geronl. | June 26, 2022 at 7:52 pm

    A three-judge panel in the 9th Circuit said 18-year-olds can buy a long rifle if they get a license first. I don’t know if California asked for an en banc hearing, they were thinking about it.

    Red flag laws have not been declared unconstitutional. About the same time as that 9th Circuit decision, there was a red flag case in a different circuit court that was tossed because the issue was still in a state court.

    SCOTUS has not addressed either issue.

      smalltownoklahoman in reply to Colonel Travis. | June 26, 2022 at 9:00 pm

      Hopefully that is something that will be addressed in the next couple of years. Maybe during a 2nd Trump term in office.

    taurus the judge in reply to geronl. | June 27, 2022 at 8:06 am

    No and this is where a more detailed understanding needs to be made because the Left is an absolute master of deception and being numerically inferior-they specialize in making us waste resources fighting ghosts rather than directly strike the target.

    A “red flag” law is fully Constitutional simply because it doesn’t exist. Its a made up media/political euphemism right up there with “Saturday Night Special”, “Assault Rifle” and “Free Trade”.

    The WAY the “RFL” is defined, the tests and the restrictions are what can be Constitutional or Unconstitutional in terms of whatever law is in play.

    When we go to our representatives we need to stop whining about “RFL’s” because that’s what’s expected of us ( we are the illiterate unwashed inferiors- remember?) and believe me they get “tone deaf” to that.

    We need to SPECIFICALLY FOCUS on the “Unconstitutional” tenets of the individual law such as seizure of property without due process ( and define due process) and MANDATE the critical tenets of said laws such as the specific tests/thresholds and criterial to adjudicate a person as “mentally whatever” or even better what is the “invisible line” where a person becomes a “legitimate threat” to society?

    If WE don’t push for the specifics in those areas- be prepared for the left to do it for us.

    Age limits are a little different because the Constitution doesn’t define an age. The best we can do on most precedents is the militia acts where 17 yr old’s are specified. ( even then, that was to be mandated for the militia, its “presumed” they had gun ownership rights prior to that because they were to “bring” their gun- not procure one).

    There will be a bit of a fight on that one and eventually a law will have to be made.

    The other precedent ( as compared to things such as buying cigarettes, insurance, entering contracts etc.) is this.

    None of the aforementioned are “inalienable rights” reinforced by the Constitution- the 2A is. One doesn’t have to meet any age requirement for any other right and there is nothing requiring the 2A to have one. This is actually the strongest argument but it HAS TO BE USED.

      Age limits are a little different because the Constitution doesn’t define an age.
      Going to disagree here. The 26th Amendment specifies the age for voting rights as 18. Eighteen was used because it was (and still mostly is) the age of majority that makes you an adult. If the Constitution states you’re an adult for voting, then you should be considered an adult in every other way.

      But you’re right about needing to argue the proper aspects in these fights. Too often (and I’ve criticized lots of ‘conservative’ commentators about this over the years) we argue the emotional bits and throw around catchphrases and don’t actually drill down to kick out the pillar of the unconstitutional law that needs kicking.

        taurus the judge in reply to GWB. | June 27, 2022 at 9:56 am

        Voting is a totally separate and unequal issue to the 2a.

        Your argument lost all “legal” horsepower when you said “should be considered” ( should according to what viewpoint?)

        Actually, the “age” of adult ( or accountability) or any other way to phrase it is equally conjecture and fluid as well.

        Like I said, the Constitution doesn’t define an age.

rabid wombat | June 26, 2022 at 7:49 pm

“recently age limits were also ruled unconstitutional?”

I have a lot of heartache over the age of majority. You are, or you are not. There are not different ages for the: draft, contracts, beer, porno (G, GP, R or X), tobacco, or guns. You are over the age of majority, or you are not…

“Rep. Felix made it clear that she does not believe in the individual, natural right of self-defense as protected by the Second Amendment.”

Then Rep. Felix is unqualified, by her own admission, to be a public officer which, by virtue of Article VI, requires her to state and subscribe to an oath of support the Constitution. The Constitution as written.

    drednicolson in reply to fscarn. | June 26, 2022 at 8:37 pm

    She should be publicly confronted with that clear violation of her oath of office and asked to resign.

    Rep. Feelz “believes” otherwise. It’s an “ickiness” issue. 2A is too “icky”. Hard to explain. So she doesn’t.

    Milhouse in reply to fscarn. | June 27, 2022 at 9:44 am

    There is no requirement that a person must believe in the constitution. to hold office. “Support” in the oath does not mean “advocate” or “endorse”; it means “defend”, “uphold”, “protect”. An office-holder swears that, at least while they hold the office, they won’t be part of any effort to disobey or illegally overthrow the constitution; but they can certainly advocate amendments, including that it be peacefully and lawfully replaced entirely. And of course they are entitled to interpret it any way they like; they are not bound to personally accept the supreme court’s interpretation. Otherwise you’d be saying that pro-life and pro-gun office-holders were violating their oaths for decades, until just now.

JackinSilverSpring | June 26, 2022 at 10:20 pm

Leftists of course are insane because they are unable to reason properly. Ask yourself the simple question: do felons give a damn about any of these laws? They’ll do what they damn well please. The only people affected are law abiding citizens who don’t want to get arrested by overeager cops, and who will now be at a disadvantage compared to felons. This does not increase anybody’s safety, and may reduce it.

So the Gov is wearing “Mothers Demand Action”. T-shirt…..a Bloomberg under astroturfed entity. At least MADD isagainst illegal things and not banning automobiles. Do these Dems really believe this or just playing along to save their precious democracy of evil guns? Their delusion should be enough to ban them from butter knives. Jefferson was correct….a nation cannot endure both free and ignorant.

henrybowman | June 27, 2022 at 4:08 am

“The average age of soldiers in the Continental Army was between 18 and 20—an inconvenient historical fact for age restriction proponents.”

But the Founding Fathers could not have foreseen today’s Assault Teens!

As a MA resident I have to hear all of the time. “why do you keep voting these people into office?). Many of us don’t, but more do. Ultimately these things have to be won in courts and then protected zealously.. We have been fighting against an unconstitutional ruling by our AG for years.

    CommoChief in reply to Obie1. | June 27, 2022 at 9:57 am

    The outcome of Bruen was a result of action in CT and now with Heller, MacDonald and Bruen the Citizens of every State have the tools necessary to successfully challenge the anti gun regime in their State in CT.

But no politician has that power—period.
I think you misconstrue “power” for “authority”. The definitely have the power to do so, as evidenced by the acquiescence of the voters to these laws for up to 100 years.

[W]e shouldn’t be selling lethal weapons to people who we’ve decided are not old enough to buy cigarettes or beer.
But they are – by the Constitution – old enough to vote. So, is it your patronizing attitude, Senator, or your lack of understanding that is the problem here?

“No one should be walking around our communities with a loaded weapon.”
OK, Representative, you first. Eliminate all your armed security. Period.
Also, the Supreme Court just told you otherwise. They called you a tyrant for attempting to take away that right.

The average age of soldiers in the Continental Army was between 18 and 20
In Vietnam it was Nu-nu-nu-nu-nu-nineteeen. Though, I seem to recall that number was debunked later.

the arguments being offered for these laws are far from impressive.
BUT, they will still hold sway with Progressive jurists who desire to implement their religion as the state religion. Until someone, somehow, provides direct, severe, physical consequences for the violation of their oaths.

    taurus the judge in reply to GWB. | June 27, 2022 at 10:33 am

    @GWB

    >>>The average age of soldiers in the Continental Army was between 18 and 20
    In Vietnam it was Nu-nu-nu-nu-nu-nineteeen. Though, I seem to recall that number was debunked later.

    Its a fluid number and it all depends on where one starts counting (date wise) and if one counts all people in theater or just combat MOS exclusively. ( even down to E1-E-4 grades).

    There’s no real “proven” or accepted average age for those reasons.